1

Filed 5/3/13

CERTIFIED FOR PARTIAL PUBLICATION

٭

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JOE LYNN MCCOY,

Defendant and Appellant.

C067380

(Super. Ct. No. 09F07723)

APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. 

Connelly, Judge. Affirmed in part and reversed in part.

Kat Kozik, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell, 

Assistant Attorneys General, Eric L. Christoffersen and Brook Bennigson, Deputy 

Attorneys General, for Plaintiff and Respondent.

 

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Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts III, IV, VI, and VII of the discussion.
2

Defendant Joe Lynn McCoy physically and sexually assaulted his girlfriend, 

Cindy H., fracturing her spine during the attack and rendering her a quadriplegic. 

Because Cindy H.‟s medical condition provided reasonable grounds to fear she would be 

unable to testify at trial, she was examined conditionally during the preliminary hearing 

via two-way video. At trial, as anticipated, the video of this examination was played for 

the jury because Cindy H. was unable to testify. Defendant was convicted of torture 

(count 2), inflicting corporal injury on a cohabitant (count 3), and unlawful sexual 

penetration with a foreign object (count 4). With respect to count 3, the jury found 

defendant personally inflicted great bodily injury causing paralysis. With respect to 

count 4, the jury found defendant personally inflicted torture.1 The trial court sentenced 

defendant to state prison for a term of 25 years to life and imposed other orders. 

On appeal, defendant asserts: (1) the introduction of Cindy H.‟s conditional 

examination violated his Sixth Amendment right of confrontation because (a) the video 

equipment used during the conditional examination was not set up to allow him to 

confront his accuser “face-to-face,” and (b) he possessed a substantially different interest 

and motive in cross-examining Cindy H. during the conditional examination than he did 

at trial; (2) the trial court further violated defendant‟s Sixth Amendment right of 

confrontation, as well as his Fourteenth Amendment right to due process, by allowing the 

prosecution to amend the information to add a one-strike torture allegation to count 4 

after the conditional examination; (3) the trial court prejudicially erred when it denied 

defendant‟s motion for a continuance rather than construe that motion as a request to 

discharge the jury and declare a mistrial; (4) the trial court prejudicially erred in 

admitting into evidence a prior act of domestic violence under Evidence Code section 

 

1 The jury was unable to reach a verdict on count 1, which charged defendant with 

attempted murder. Nor could the jury reach a verdict on a one-strike great bodily injury 

allegation attached to count 4. 
3

1109; (5) defendant‟s conviction in count 4 for unlawful sexual penetration must be 

reversed because of instructional error; (6) the trial court “mishandled” defendant‟s 

motion to replace his appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 

(Marsden); and (7) the abstract of judgment must be corrected. 

The Attorney General concedes there is an error in the abstract of judgment and 

also points out that the trial court neglected to impose sentence on counts 2 and 3 before 

staying their execution pursuant to Penal Code section 654,2resulting in an unauthorized 

absence of sentence. We accept the concession, agree that sentence must be imposed on 

counts 2 and 3, and remand the matter to the trial court for this limited purpose. 

Turning to defendant‟s remaining contentions, the first is forfeited and the 

remainder fail on the merits. As we explain, defendant‟s failure to object to the manner 

in which the video equipment was set up during the conditional examination has forfeited 

the claim that he was deprived of the ability to confront his accuser “face-to-face.” Had 

an objection been made, any error in failing to turn the camera to show defendant to 

Cindy H. during her testimony could easily have been remedied. And because defendant 

did not possess a substantially different interest and motive in cross-examining Cindy H. 

during the conditional examination than he did at trial, we cannot conclude that playing 

this examination for the jury violated his confrontation rights. Nor did the trial court 

abuse its discretion or violate defendant‟s constitutional rights by allowing the 

prosecution to amend the information to add the one-strike torture allegation to count 4 or 

by denying his request for a continuance. We also conclude the trial court did not err in 

admitting into evidence the prior incident of domestic violence. As we explain, while 

this particular incident took place more than 10 years before the charged crimes, the trial 

court did not abuse its discretion in concluding that admission of this evidence was in the 

 

2 Undesignated statutory references are to the Penal Code. 
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interest of justice. Nor was the jury improperly instructed with respect to the crime of 

unlawful sexual penetration. Finally, we disagree that the trial court mishandled 

defendant‟s Marsden motion. 

FACTS

In September 2006, defendant and Cindy H. began dating. At the time, Cindy H. 

lived in an apartment on La Riviera Drive in Sacramento with her two teenage sons. In 

March 2007, defendant moved into the apartment. By the following March, both of 

Cindy H.‟s sons had moved out of the apartment. Defendant‟s violence against Cindy H. 

began three months later. 

The first violent incident occurred in June 2008. Cindy H. was drinking with 

defendant at a bar when she told him she wanted to go home. Defendant refused to leave. 

Cindy H. left the bar and started to walk home. Defendant then called a cab and was the 

first to reach the apartment. When Cindy H. walked through the door, defendant 

“backhanded” her and told her to take off her clothes. While yelling, defendant then 

ripped her shirt off and hit her several times on the side of her leg. Two days later, 

Cindy H. went to work with a black eye and bruises on her leg. A coworker took pictures 

of the injuries. 

Between June 2008 and September 2009, defendant physically assaulted Cindy H. 

“four or five” times in the apartment, each time causing black eyes. On one of these 

occasions, he hit her in the head with something that caused two cuts and resulted in 

“quite a bit of blood on the carpet.” Each time, defendant had been drinking. And each 

time, he stood between Cindy H. and the door and “would either tell [her] to take [her] 

clothes off or he would force -- forcefully remove [her] clothes.” As Cindy H. described 

the impetus for these assaults, “[h]e would get it in his head that [she] was cheating on 

him or that [she] was with somebody else.” 

The last violent incident continued this theme and resulted in Cindy H.‟s 

quadriplegia. On September 15, 2009, she and defendant looked at houses with a realtor. 
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At some point, they began to argue and returned to the apartment. Cindy H. changed into 

a bathing suit and went to a place along the American River she and defendant 

frequented. She brought a CD player, a book, a bottle of wine, and some lemon-lime 

soda. She did not invite defendant to come along. While at the river, she talked to 

defendant on the phone and asked if he was going to “come down and meet [her] at the 

river.” Defendant seemed “irritated” and said that “he would be going the next day 

without [her].” 

Defendant drank alcohol at the apartment while Cindy H. was at the river. When 

she returned to the apartment, defendant “accused [her] of getting out of somebody‟s 

truck.” She responded that “he was seeing things.” Defendant “became angry,” ripped 

the top half of her bathing suit, took her CD player and “stomped” on it, emptied her 

purse onto the floor, and then told her to “clean up the mess.” Cindy H. removed the 

entire bathing suit, placed it in the trash, and started picking up defendant‟s mess. As she 

did so, defendant hit her in the head with either his palm or the back of his hand and told 

her to “hurry up.” She ended up lying face down on the carpet near the front door. 

Defendant then grabbed both of her legs and forced them up and forward towards her 

head. Cindy H. felt a “pop” and a “burst of heat,” and “still [lying] face down, [she 

could] see [her] legs in front of [her head].” Realizing she could not move her limbs, 

Cindy H. told defendant he had broken her back. He responded that she “wasn‟t hurt that 

bad.” Defendant then turned her over and kicked her several times in the vaginal area, 

uttering vile epithets as he did so. As a final insult to her human dignity, defendant 

“inserted three double A batteries into [Cindy H.‟s] rectum,” and then removed the third 

battery, which was “now covered with fecal matter, and he smear[ed] it on [her] face.” 

At some point, defendant dragged Cindy H. into the hallway and called Anthony 

Colding, the maintenance man at the apartment complex. Defendant told Colding he 

“needed help” with Cindy H., but did not offer any details. Colding and his wife, 

Shelonar Ballard, drove from their home in South Sacramento to defendant‟s apartment 
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complex and arrived about 30 minutes later. In the meantime, Cindy H. pleaded with 

defendant to call for an ambulance. He continued to insist she was not seriously hurt. 

When Colding and Ballard arrived at the complex, Colding went to the apartment and 

Ballard remained in the car. The lights in the apartment were turned off. After knocking 

on the door and receiving no answer, Colding called defendant and said he was at the 

front door. The door opened and defendant let him inside. 

Colding found Cindy H. lying naked in the hallway where defendant had left her. 

She was asking for help. Colding asked defendant: “What happened to her?” Defendant 

answered that he “stuck some batteries up in her butt.” Defendant and Colding then 

picked her up, carried her to the bedroom, and placed her on the bed. As they did so, 

Cindy H. begged them not to move her. Realizing Cindy H. was seriously injured, 

Colding told defendant he “need[ed] to call the ambulance.” His response: “That B[itch] 

don‟t need no help.” Defendant then offered Colding a beer. Colding declined and 

returned to Ballard, who was still in the car. After Colding told Ballard what he had seen 

inside the apartment, he again called defendant, this time to allow Ballard to talk to 

Cindy H. on the phone. Ballard told her to say “rock” as a code word to indicate she 

needed help. Cindy H. did so. Ballard hung up and called 911. 

Sheriff‟s deputies arrived at the apartment during the early morning hours of 

September 16, 2009, about 40 minutes after the 911 call. They knocked repeatedly and 

announced their presence, but no one answered the door. Again, the lights in the 

apartment had been turned off. There were no sounds coming from the apartment. 

Eventually, they left. Cindy H. explained she did not call out to the deputies for help 

because, based on prior experience, she was afraid defendant would strangle her if she 

made a sound. 

After the deputies left, defendant fell asleep. Cindy H. woke him up at some 

point, told him she was in pain, and asked to be taken to the hospital. Defendant told her 

to “leave him alone so he could go back to sleep.” Later in the morning, she told 
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defendant she needed to call in sick to work. Defendant made the phone call and held the 

phone for her while she told her manager she was in a car accident and would not be 

coming in. She then told defendant several more times she was in pain and needed help. 

Each time, he refused to call for help. Instead, he placed hot towels on her arms and told 

her taking a hot bath would help. When defendant tried to help her to stand beside the 

bed, her legs “folded” under her weight. Defendant told her to “put [her] arms around 

him and help him.” She responded: “I can‟t, you broke my back. I can‟t move my arms, 

I can‟t move my legs.” Defendant lowered her to the ground next to the bed. 

At this point, defendant suggested taking Cindy H. to the hospital in the back of 

his pickup truck, saying he did not want to call an ambulance because he “couldn‟t go to 

jail.” Defendant then started packing a bag as if he were getting ready to leave. Cindy H. 

asked if she would ever see him again. Defendant responded: “What do you think?” 

She then suggested he call 911 and leave the front door unlocked for the paramedics. 

Defendant decided to call an ambulance company directly rather than dialing 911. 

Cindy H. promised to tell medical personnel and law enforcement that she was attacked 

while at the river the night before, and she managed to drive home before losing the 

ability to move. At Cindy H.‟s direction, defendant made sure the ambulance company 

carried a backboard. He also told them lights and sirens would not be necessary. While 

waiting for the ambulance to arrive, defendant partially dressed Cindy H. and placed a 

cervical collar, which she had from a previous injury, around her neck. 

True to her word, Cindy H. told paramedics she was attacked by a woman the 

night before while partying at the river, she felt “minor pain” when she got home, put on 

the cervical collar, and woke up unable to move. She was taken to Mercy San Juan 

Medical Center. Doctors diagnosed a fracture and dislocation of the cervical spine at the 

C5/C6 location, which rendered her permanently paralyzed below her chest. She had 

bruises on her lower abdomen, legs, and arms. The two batteries that remained in her 

rectum were removed. She was then placed in traction to realign the spine before being 
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taken to the operating room where spinal surgery was performed. When the surgeon 

asked how she received the spinal injury, she again claimed to have been attacked by a 

woman the night before. 

Defendant was arrested about three weeks later at a Motel 6 in South Sacramento. 

DISCUSSION

I

Admission of the Conditional Examination

Defendant contends the trial court violated his Sixth Amendment right of 

confrontation by admitting into evidence Cindy H.‟s conditional examination. 

Specifically, he argues: (1) the video equipment used during the conditional examination 

was not set up to allow him to confront his accuser “face-to-face,” and (2) he possessed a 

substantially different interest and motive in cross-examining Cindy H. during the 

conditional examination than he did at trial because a one-strike torture allegation was 

added to count 4 after the conditional examination was conducted. The first of these 

contentions has been forfeited. The second fails on the merits. 

A.

Statutory Framework

In order to place defendant‟s contentions in context, we begin with a brief 

overview of the statutory scheme governing conditional examinations. 

In all criminal cases, “other than those for which the punishment may be death” 

(§ 1335, subd. (a)), the prosecution may apply for a court order compelling a material 

witness to submit to a conditional examination if the witness “is about to leave the state, 

or is so sick or infirm as to afford reasonable grounds for apprehension that he or she will 

be unable to attend the trial, or is a person 65 years of age or older, or a dependent adult.” 

(§ 1336, subd. (a).) The prosecution may also apply for such an order in cases in which 

the “defendant has been charged with a serious felony or in a case of domestic violence,” 

even where the punishment may be death, “if there is evidence that the life of the witness 
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is in jeopardy.” (§§ 1335, subd. (b), 1336, subd. (b); People v. Jurado (2006) 38 Cal.4th 

72, 113 [“conditional examination of a prosecution witness is permitted in a capital case 

when the witness‟s life is in jeopardy”].) 

The application for a conditional examination “may be made to the court or a 

judge thereof, and must be made upon three days‟ notice to the opposite party.” (§ 1338; 

but see People v. Frank (1933) 132 Cal.App. 360, 363 [order shortening time may issue 

upon a proper showing that the exigencies of a given case require notice of less than three 

days].) “If the court or judge is satisfied that the examination of the witness is necessary, 

an order must be made that the witness be examined conditionally, at a specified time and 

place, and before a magistrate designated therein.” (§ 1339.) “The defendant has the 

right to be present in person and with counsel at the examination.” (§ 1340, subd. (a).) 

However, “[i]f the court determines that the witness to be examined is so sick or infirm as 

to be unable to participate in the examination in person, the court may allow the 

examination to be conducted by a contemporaneous, two-way video conference system, 

in which the parties and the witness can see and hear each other via electronic 

communication.” (§ 1340, subd. (b).) 

At the conditional examination, “[t]he testimony given by the witness shall be 

reduced to writing and authenticated in the same manner as the testimony of a witness 

taken in support of an information. Additionally, the testimony may be video-recorded.” 

(§ 1343.) “[I]f the examination was video-recorded, that video-recording may be shown 

by either party at the trial if the court finds that the witness is unavailable as a witness 

within the meaning of Section 240 of the Evidence Code. The same objections may be 

taken to a question or answer contained in the . . . video-recording as if the witness had 

been examined orally in court.” (§ 1345.) Among other statutory conditions, a witness is 

“unavailable as a witness” if he or she is “unable to attend or to testify at the hearing 

because of then-existing physical or mental illness or infirmity.” (Evid. Code, § 240, 

subd. (a)(3).) 
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B.

Additional Background

On March 3, 2010, the date set for the preliminary hearing, the prosecution applied 

for an order directing that Cindy H. be conditionally examined the following day via twoway video conference system. As the prosecutor explained: “I learned after being 

assigned to this courtroom that [Cindy H.], who is a quadriplegic as a result of this crime 

and who is currently in a care facility, became ill with pneumonia. We had learned that 

she was ill with pneumonia yesterday, however, [Cindy H.] indicated to me she felt she‟d 

be well enough to attend today‟s hearing. [¶] What I learned this morning was from the 

actual care facility who indicated [Cindy H.], her pneumonia [sic] had become worse, she 

was not going to be able to travel. And they were carefully monitoring her condition in 

the hopes that the medication or prescription she was on would help alleviate her 

symptoms. [¶] The People became concerned that [Cindy H.] would not be able to travel 

for some time or may even get worse, her condition may even get worse, so we chose to 

petition the Court requesting that we conduct a conditional examination of [Cindy H.] 

given that at this point in time she is unable to travel from her care facility.” 

Defendant‟s attorney pointed out that section 1338 required the prosecution to 

provide him with “three days notice on the issue,” and stated: “I may be willing to waive 

that and proceed tomorrow, but I‟m going to ask the Court to allow me overnight to 

conduct legal research on this.” The magistrate, Judge David I. Brown, found good cause 

to continue the preliminary hearing for one day and directed defendant‟s attorney to 

People v. Frank, supra, 132 Cal.App. 360, explaining that the Court of Appeal in that 

case held a deposition taken under section 1336 was admissible even though the 

deposition was taken the same day the application was filed rather than on three days‟ 

notice. 

On March 4, 2010, the preliminary hearing resumed and the same magistrate 

explained he was treating the prosecution‟s application for a conditional examination 
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upon less than the statutorily required three days‟ notice as an application for an order 

shortening time to conduct the requested examination. Defendant‟s attorney objected to 

the lack of notice and further objected that conducting the examination via two-way 

video conference would violate defendant‟s Sixth Amendment right to confront his 

accuser, arguing that “there could be some distinctions and some differences in my ability 

to cross-examine her today by video conference as compared to her live testimony in the 

sense that I won‟t have a chance to look at body language, it may be difficult for me to 

understand some of her answers or questions, and you would lose the ability to interact 

with each other in a live format.” 

The prosecutor responded: “Our concern is, based on what the medical staff is 

telling us, that pneumonia can be very detrimental to somebody who is a quadriplegic 

and, therefore, not only was she unable to travel due to her illness but our concern was 

getting her testimony documented should she become more severely ill.” The magistrate 

interjected: “Or die?” The prosecutor answered: “Yes.” The magistrate then granted 

the application and addressed defendant‟s attorney: “I believe that you‟ll have the 

appropriate opportunity to cross-examine the witness. Admittedly, she won‟t be present 

here in the flesh, but she will be present in the flesh in another location where a video 

conferencing setup will allow us to be able to cross-examine her and ask her questions 

regarding her recollection of what occurred and her statements relating to her condition. 

[¶] I assume, of course, that those are going to be the areas that are going to be addressed 

primarily, as well as her relationship to the defendant, so that we can make a 

determination based on the witness‟s own statements.” 

The conditional examination was conducted during the afternoon session. A twoway video conference system was set up connecting Cindy H. at the care facility with the 

magistrate, defendant, defense counsel, and the prosecutor in the courtroom. The system 

enabled the parties to see and hear Cindy H. while she testified and enabled Cindy H. to 

see and hear each attorney who asked her questions. When the prosecutor finished her 
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examination of Cindy H., the camera was moved to show defendant‟s attorney during his 

cross-examination of the witness. The camera was not moved to show defendant to 

Cindy H. during her testimony, except when she identified him as her attacker. 

Defendant‟s attorney did not object to the manner in which the system was set up. 

Following the preliminary hearing, defendant was held to answer. 

On November 9, 2010, the prosecution moved to amend the information to add 

two one-strike allegations to count 4. The amendment sought to allege defendant 

inflicted aggravated mayhem or torture during the commission of the sex offense within 

the meaning of section 667.61, subdivision (d)(3), and that he also personally inflicted 

great bodily injury during the commission of this crime within the meaning of section 

667.61, former subdivision (e)(3).3 Defendant objected to the amendment, arguing the 

prosecution introduced “absolutely no evidence” during the preliminary hearing that he 

inflicted mayhem, torture, or great bodily injury while inserting the batteries into 

Cindy H.‟s rectum. On November 18, 2010, the trial court entertained argument on the 

proposed amendment and deferred ruling on the motion. 

On November 29, 2010, prior to opening statements, the prosecutor advised the 

trial court Cindy H. was unable to come to court because she was hospitalized due to a 

bladder infection. The parties agreed to hold opening statements in abeyance until they 

received further information concerning her condition. That afternoon, the prosecutor 

informed the trial court Cindy H. was in the intensive care unit due to both a urinary tract 

 

3 At the time of the crime, section 667.61, subdivision (e)(3), provided: “The defendant 

personally inflicted great bodily injury on the victim or another person in the commission 

of the present offense in violation of Section 12022.53, 12022.7, or 12022.8.” (Stats. 

2006, ch. 337, § 33, p. 2640.) Currently, this subdivision provides: “The defendant 

personally used a dangerous or deadly weapon or a firearm in the commission of the 

present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.53.” 

(§ 667.61, subd. (e)(3).) Former subdivision (e)(3) can now be found in subdivision 

(d)(6). 
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infection and pneumonia, she was nonresponsive, her breathing was being assisted by a 

breathing tube, and the doctors would know more about her condition in two or three 

days. The trial court indicated the trial would proceed the following day with opening 

statements and prosecution witnesses, followed the next day by a hearing on whether the 

conditional examination would be played for the jury. Defense counsel objected to 

playing the conditional examination for the jury and explained: “My concern at this point 

would really be compounding of the conditional examination with the amended 

information. [¶] The Court is aware that we would have three days notice as required by 

law. The Court found a reason at the time of the preliminary hearing to allow the District 

Attorney to not have to comply with that requirement. But now [defendant] is in a 

position where the conditional exam[ination] is held over his objection without adequate 

notice, and since that time now an amended information has been filed adding two rather 

substantial enhancements. One 15 years to life, one 25 [years] to life, which he did not 

have an opportunity to cross-examine on at the time of the preliminary hearing and 

conditional exam[ination].” The trial court then entertained further argument regarding 

the prosecution‟s motion to amend the information and granted the motion. 

On December 1, 2010, the trial court held a hearing outside the presence of the

jury concerning whether Cindy H. was unable to testify because of physical illness within 

the meaning of Evidence Code section 240, subdivision (a)(3). Dr. Daniel Yuen testified 

concerning her medical condition. He explained that while Cindy H. was being treated 

for a urinary tract infection, she became unresponsive due to a lack of oxygen and had to 

be placed on a respirator. A chest x-ray revealed she also had pneumonia. The 

pneumonia had become worse in the previous two days and Cindy H. was under sedation. 

Dr. Yuen did not believe she would be able to have the breathing tube removed within a 

week in order to testify. Dr. Yuen also expressed doubt about whether she would be able 

to nod her head in response to questions because of her neck injury. In response to a 

question by defendant‟s attorney, Dr. Yuen clarified that because quadriplegia makes it 
14

difficult to recover from pneumonia, “it may be a long, long time” before Cindy H. would 

be able to be taken off of the respirator. Indeed, a tracheotomy may be required. The 

best case scenario was that it would take “at least a month” for her to be able to come into 

court to testify. The worst case scenario was that she might not survive. 

Prior to ruling on the prosecution‟s request to play the conditional examination for 

the jury, the trial court allowed both sides to argue the matter. Defense counsel again 

expressed concern that he did not have an opportunity to cross-examine Cindy H. about 

the one-strike allegations that were added to the information after the conditional 

examination. He argued that, because of this, playing the conditional examination for the 

jury would violate defendant‟s Sixth Amendment right to confront his accuser. Defense 

counsel then requested a continuance of an unspecified duration, as he put it, “to see if we 

can obtain [Cindy H.‟s] testimony either live or by video conference.” In response, the 

prosecutor pointed out that the initial information contained a charge of attempted murder 

with a great bodily injury enhancement and a charge of torture. Thus, argued the 

prosecutor, during the conditional examination, defense counsel was given an opportunity 

to cross-examine Cindy H. concerning whether defendant inflicted great bodily injury 

and torture during his violent assault. Defense counsel responded by reminding the trial 

court that “this was a situation where the three-day notice requirement was not met and 

that aggravates.” 

The trial court granted the request to play the conditional examination for the jury. 

Citing People v. Frank, supra, 132 Cal.App. 360, the trial court confirmed the 

magistrate‟s ruling with respect to allowing the conditional examination to take place on 

less than three days‟ notice. The trial court then reviewed Dr. Yuen‟s testimony 

concerning Cindy H.‟s medical condition and ruled she was “unavailable as a witness” 

within the meaning of Evidence Code section 240. The trial court also pointed out that, 

although notice was shortened, defense counsel had “effectively a full day notice” 

Cindy H. would be examined conditionally during the preliminary hearing. Moreover, 
15

“the initial charges as they existed prior to the preliminary hearing and at the time of the 

preliminary hearing encompass the fundamental enhancements as they were later sought 

and amended . . . . [¶] The notable great bodily injury here was the spinal injury which 

would be consistent with the facts used by the mayhem enhancements, which is pled in 

the alternative to the torture. As to the torture itself, the violation of . . . Section 206 was 

asserted at that time in the Information. [¶] So the issue of torture and great bodily 

injury specifically by way of factual background including the spinal injury were directly 

immediately at issue in the context of the preliminary hearing.” 

The conditional examination was played for the jury later that day. As mentioned, 

the jury convicted defendant of torture, inflicting corporal injury on a cohabitant (with a 

great bodily injury enhancement), and unlawful sexual penetration with a foreign object 

(with a one-strike torture enhancement). Defendant‟s new trial motion, arguing in part 

that his Sixth Amendment right of confrontation was violated by the trial court‟s decision 

to allow the conditional examination to be played for the jury, was denied. 

C.

Defendant’s Right to Face-to-face Confrontation

Defendant argues the introduction of Cindy H.‟s conditional examination violated 

his Sixth Amendment right to confront his accuser face-to-face because “the camera 

equipment was not set up to show [defendant] to [Cindy H.] as she testified.” 

Defendant‟s failure to object on this ground at a time when the purported error could 

have been remedied by the magistrate forfeits the issue on appeal. 

The failure to raise a claim of federal constitutional error before the trial court 

forfeits the issue on appeal unless “ „it appears that (1) the appellate claim is the kind that 

required no trial court action to preserve it, or (2) the new arguments do not invoke facts 

or legal standards different from those the trial court was asked to apply, but merely 

assert that the trial court‟s act or omission, in addition to being wrong for the reasons 

actually presented to that court, had the legal consequence of violating the 
16

Constitution.‟ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 809, quoting People v. 

Boyer (2006) 38 Cal.4th 412, 441, fn. 17; People v. Riccardi (2012) 54 Cal.4th 758, 801; 

People v. Redd (2010) 48 Cal.4th 691, 730 [failure to raise objection based on 

confrontation clause forfeited claim on appeal].) Moreover, in order to avoid forfeiture, 

the defendant must have objected on the “specific grounds” asserted as error on appeal. 

(People v. Fuiava (2012) 53 Cal.4th 622, 689.) 

Here, as mentioned, defendant objected to the taking of the conditional 

examination based on the lack of three days‟ notice and further objected that conducting 

the examination via two-way video conference would violate his Sixth Amendment right 

to confront Cindy H. because “there could be some distinctions and some differences in 

[defense counsel‟s] ability to cross-examine [Cindy H.] by video conference as compared 

to her live testimony in the sense that [counsel] won‟t have a chance to look at body 

language, it may be difficult for [counsel] to understand some of her answers or 

questions, and [they] would lose the ability to interact with each other in a live format.” 

Thus, the constitutional objection went to whether the conditional examination should be 

conducted in person as opposed to through video conference. We first note “the right to 

confrontation is „ “basically a trial right.” ‟ ” (People v. Miranda (2000) 23 Cal.4th 340, 

350-351 [use of hearsay at preliminary hearing does not violate the confrontation clause], 

quoting Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1079, italics omitted.) 

Accordingly, defendant did not have a constitutional right to confront Cindy H. at the 

conditional examination. However, it was anticipated by all parties that Cindy H.‟s 

conditional examination testimony could be used at trial. Defense counsel‟s objection 

may therefore be construed to be that if the conditional examination was held via video 

conference, then its subsequent admission at trial would violate defendant‟s 

confrontation rights. The magistrate (Judge Brown) overruled the objection and allowed 

the conditional examination to be conducted via video conference. 
17

Later in the day, the video conference system was set up and the conditional 

examination was conducted. All parties could see and hear Cindy H. while she testified 

and Cindy H. could see and hear each attorney who asked her questions. Defendant 

never objected to the fact that the camera equipment was not set up to allow Cindy H. to 

see him on the screen while she testified. Again, while the confrontation clause generally 

“guarantees a criminal defendant „a face-to-face meeting with witnesses appearing before 

the trier of fact‟” (People v. Lujan (2012) 211 Cal.App.4th 1499, 1504-1505, quoting Coy 

v. Iowa (1988) 487 U.S. 1012, 1016 [101 L.Ed.2d 857]), this right attaches at trial. 

However, defense counsel could have objected that if the video conference system did 

not allow for a face-to-face confrontation, then the subsequent admission of the 

conditional examination at trial would violate defendant‟s confrontation rights. 

Defendant could also have objected that such a system would violate section 1340, 

subdivision (b), requiring a video conference system “in which the parties and the witness 

can see and hear each other via electronic communication.” No such objection was 

made. Had either objection been made, the magistrate could have ruled on whether to 

turn the camera during Cindy H.‟s testimony to allow her to see defendant. 

Moreover, at no time during trial did defendant object to the playing of the 

conditional examination based on the position of the camera equipment during the 

examination. While defendant objected on confrontation grounds, his objection was 

based on the argument that he did not have an opportunity to cross-examine Cindy H. 

about the one-strike allegations added to the information after the conditional 

examination. 

Anticipating forfeiture, defendant argues his failure to object “should be excused 

as futile.” We are not persuaded. The magistrate addressed the logistics of setting up the 

video conference system and stated: “It‟s not required that [Cindy H.] sees us, but it 

certainly is required that we see her. [¶] . . . [¶] And that we have a full and complete 

opportunity to, you know, examine and cross-examine her. [¶] . . . [¶] It would be 
18

preferable if she could see us as well, and there may well be a camera that allows her to 

do that.” Defendant quotes only the first sentence and argues: “Clearly, the magistrate 

had already made up his mind.” We disagree for two reasons. First, the sentence 

defendant relies upon was in response to the prosecutor‟s statement she did not believe 

“the code” required Cindy H. to be able to see the parties while she testified. Thus, the 

magistrate‟s response had nothing to do with the requirements of the confrontation 

clause. Second, immediately thereafter, the magistrate expressed a preference for a video 

conference system that enabled Cindy H. to see the parties while she testified, which is 

exactly the system that was set up. And while this system did not show defendant to 

Cindy H. while she testified, defendant should have made a specific objection based on 

his right to face-to-face confrontation and given the magistrate the opportunity to rule on 

the matter. 

Finally, we decline defendant‟s request to address the claim on the merits in order 

to “forestall a claim of ineffective assistance of counsel.” The burden of proving a claim 

of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden

(1976) 16 Cal.3d 808, 816.) And when, as here, counsel has not had the opportunity to 

explain his conduct, we will not find ineffective assistance of counsel unless there could 

be no satisfactory explanation. (People v. Lewis (1990) 50 Cal.3d 262, 288.) Here, as the 

Attorney General argues, defense counsel could have determined that having the camera 

focus on defendant‟s face during the conditional examination might have made her 

“emotional and upset,” which may have made her more sympathetic to the jury who 

ultimately would be viewing the video of the examination later at trial. Defendant‟s only 

response is that this explanation “fails to explain why counsel would later object at trial, 

. . . but do so inadequately.” But, as we have explained, counsel‟s objection to the 

playing of the conditional examination at trial did not include any argument that the 

placement of the camera equipment prevented defendant from confronting Cindy H. faceto-face. A satisfactory explanation for this would lie in counsel‟s belief the trial court 
19

would have considered the issue forfeited by his failure to object on these grounds at a 

time when the magistrate could have corrected the purported error. 

We conclude defendant has forfeited the contention that playing the conditional 

examination for the jury violated his Sixth Amendment right to confront his accuser faceto-face because the camera equipment was not set up to allow Cindy H. to see him while 

she testified. 

D.

Similarity of Defendant’s Interest and Motive in 

Cross-examining Cindy H. at the Conditional Examination

Defendant also argues the trial court violated his Sixth Amendment right of 

confrontation by allowing the conditional examination to be played for the jury because 

he possessed a substantially different interest and motive in cross-examining Cindy H. 

during that examination than he did at trial. We disagree. 

“A criminal defendant has a constitutionally guaranteed right to confront and 

cross-examine the witnesses against him or her. [Citations.] The right of confrontation is 

not absolute, however, and may „in appropriate cases‟ bow to other legitimate interests in 

the criminal trial process. [Citations.] An exception to the confrontation requirement 

exists where the witness is unavailable, has given testimony at a previous judicial 

proceeding against the same defendant, and was subject to cross-examination by that 

defendant. [Citations.] Further, the federal Constitution guarantees an opportunity for 

effective cross-examination, not a cross-examination that is as effective as a defendant 

might prefer. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1172.) 

In People v. Zapien (1993) 4 Cal.4th 929 (Zapien), our Supreme Court held the 

admission of an unavailable witness‟s preliminary hearing testimony “is permitted under 
20

Evidence Code section 1291[4] and does not offend the confrontation clauses of the 

federal or state Constitutions.” (Id. at p. 975.) This is so, explained the court, “not 

because the opportunity to cross-examine the witness at the preliminary hearing is 

considered an exact substitute for the right of cross-examination at trial [citation], but 

because the interests of justice are deemed served by a balancing of the defendant‟s right 

to effective cross-examination against the public‟s interest in effective prosecution.” 

(Ibid., citing Ohio v. Roberts (1980) 448 U.S. 56, 64 [65 L.Ed.2d 597, 606]; see also 

California v. Green (1970) 399 U.S. 149, 165-168.) And while a defendant‟s motive for 

cross-examining a witness during a preliminary hearing will often differ from his motive 

for cross-examining that witness at trial, the court explained that “these motives need not 

be identical, only „similar.‟ ” (Zapien, supra, 4 Cal.4th at p. 975, quoting People v. 

Alcala (1992) 4 Cal.4th 742, 784.) 

Defendant asserts his motive for cross-examining Cindy H. during the conditional 

examination was not similar to his motive for cross-examining her at trial because a onestrike torture allegation was added to count 4 after the conditional examination was 

conducted. According to defendant, “[t]he significance of the newly added one-strike 

torture allegation dramatically eclipsed everything else against which [he] needed to 

defend because it so greatly increased the amount of prison time he faced. Given the 

allegation‟s severity, the defense had a very strong interest and motive to focus its cross 

examination of [Cindy H.] upon it at trial. In contrast, the defense had scant incentive in 

 

4 Evidence Code section 1291 provides in relevant part: “(a) Evidence of former 

testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a 

witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was 

a party to the action or proceeding in which the testimony was given and had the right 

and opportunity to cross-examine the declarant with an interest and motive similar to that 

which he has at the hearing.” 
21

pursuing such questioning at [Cindy H.]‟s earlier conditional examination because the 

allegation had not even been brought.” 

As the trial court correctly observed, the information charged defendant with the 

substantive crime of torture at the time of the conditional examination. Thus, defendant 

had a motive for cross-examining Cindy H. concerning whether he “inflict[ed] great 

bodily injury” on her “with the intent to cause cruel or extreme pain and suffering for the 

purpose of revenge, extortion, persuasion, or for any sadistic purpose.” (§ 206.) The 

one-strike torture allegation added after the conditional examination subjected defendant 

to a term of 25 years to life for the crime of unlawful sexual penetration with a foreign 

object if, “in the commission of” that crime, he inflicted torture in violation of section 

206. (§ 667.61, subds. (a), (d)(3).) Accordingly, defendant complains he did not have an 

adequate opportunity to cross-examine Cindy H. concerning whether he inflicted torture 

“in the commission of” the sex offense within the meaning of section 667.61, subdivision 

(d)(3). 

In People v. Jones (2001) 25 Cal.4th 98 (Jones), our Supreme Court held that the 

defendant, who wielded a knife against his victim after he sexually assaulted her, used the 

weapon “in the commission of” the sex offenses within the meaning of section 667.61, 

former subdivision (e)(4).5 (Id. at p. 109.) The court explained that whether the 

defendant used the knife in the commission of the sex offenses was “not „ “a matter of 

semantics or simple chronology.” ‟ Instead, „the focus is on the relationship between the 

[sex offenses] and the [use of the weapon].‟ [Citation.]” (Ibid.) “[T]he dispositive 

question is whether the relationship between the [sex offenses] and [the use of the 

weapon] was sufficiently close to justify an enhanced punishment.” (Ibid.) Moreover, 

 

5 This subdivision provided: “The defendant personally used a dangerous or deadly 

weapon or firearm in the commission of the present offense in violation of Section 

12022, 12022.3, 12022.5, or 12022.53.” (Stats. 1998, ch. 936, § 9, p. 6875.) 
22

regardless of whether the use of the weapon “occurred before, during, or after the 

technical completion of the felonious sex act,” the “operative question is whether the sex 

offense posed a greater threat of harm, i.e., was more culpable ‒ ‒ because the defendant 

used a deadly weapon to threaten or maintain control over his [or her] victim.” (Id. at 

pp. 109-110.) 

We first note Cindy H.‟s testimony supports the conclusion that the sex offense 

was part of a continuous course of torturous conduct, beginning with the assault that 

rendered her a quadriplegic, including the insertion of the batteries into her rectum, and 

continuing throughout the night while defendant refused to call for an ambulance despite 

her obvious agony and inability to move. Indeed, the insertion of the batteries evinces a 

sadistic intent on the part of defendant. And while the great bodily injury was inflicted 

before the batteries were inserted, the jury could infer from their insertion that defendant 

also possessed a sadistic intent when he inflicted the great bodily injury. Second, and 

more importantly, as Jones, supra, 25 Cal.4th 98 makes clear, the question of whether 

defendant inflicted torture in the commission of the sex offense depends not on whether 

he inflicted great bodily injury on Cindy H. with the requisite mental state during the 

technical completion of the sex act, i.e., while he placed the batteries into her rectum. On 

this point, Cindy H. testified that defendant broke her back before he sexually assaulted 

her. The dispositive question is whether the relationship between the sex offense and the 

torture was sufficiently close to justify an enhanced punishment. Thus, even if defendant 

is correct that the torture occurred before the sex offense, this offense “posed a greater 

threat of harm, i.e., was more culpable” (Jones, supra, 25 Cal.4th at p. 110), because the 

torture rendered Cindy H. a quadriplegic and therefore unable to resist the sexual assault. 

At trial, defendant did not dispute his violent assault against Cindy H. resulted in 

her quadriplegia or that he sexually assaulted her. He did dispute whether his actions 

amounted to torture. He had a strong motive to cross-examine Cindy H. concerning the 

torture count during the conditional examination. Because further cross-examination 
23

concerning the timing of events would not have changed the fact the torturous assault that 

rendered Cindy H. a quadriplegic rendered the subsequent sexual assault more culpable, 

we cannot conclude defendant‟s motive to cross-examine Cindy H. at trial was 

substantially different from his motive to cross-examine her during the conditional 

examination. 

Nor are we persuaded defendant‟s motive for cross-examining Cindy H. 

concerning the one-strike torture allegation at trial was dissimilar to his motive for crossexamining her concerning the substantive crime of torture at the conditional examination 

simply because the one-strike allegation carried a term of 25 years to life, as opposed to

the life term attached to the torture count (§ 206.1). (See People v. Wharton (1991) 53 

Cal.3d 522, 589-590 [defendant‟s motive in cross-examining alleged victim at 

preliminary hearing in unrelated rape prosecution was sufficiently similar to motive in 

cross-examining this witness during penalty phase of subsequent capital murder trial to 

warrant admission of preliminary hearing testimony]; see also People v. Ogen (1985) 168 

Cal.App.3d 611, 617 [defendant‟s motive in cross-examining murder victim at 

preliminary hearing in prior related kidnap-rape prosecution was sufficiently similar to 

motive in cross-examining this witness during subsequent murder trial to warrant 

admission of preliminary hearing testimony].) 

The trial court did not violate defendant‟s right of confrontation by allowing 

Cindy H.‟s conditional examination to be played for the jury. 

II

Amendment of the Information

In a related argument, defendant asserts the trial court violated his Sixth 

Amendment right of confrontation, as well as his Fourteenth Amendment right to due 

process, by allowing the prosecution to amend the information to add the one-strike 

torture allegation to count 4. He is mistaken. 
24

“Due process requires that „an accused be advised of the charges against him [or 

her] so that he [or she] has a reasonable opportunity to prepare and present his [or her] 

defense and not be taken by surprise by evidence offered at his [or her] trial.‟ [Citation.] 

Thus, it is the rule that „a defendant may not be prosecuted for an offense not shown by 

the evidence at the preliminary hearing or arising out of the transaction upon which the 

commitment was based.‟ [Citations.]” (People v. Graff (2009) 170 Cal.App.4th 345, 360 

(Graff).) 

In accordance with this rule, our Supreme Court has interpreted sections 739 and 

1009 to “ „permit amendment of the information to add charges or enhancements which 

are supported by the actual evidence at the preliminary hearing, provided the facts show 

due notice by proof to the accused.‟ [Citations.]” (People v. Superior Court (Mendella)

(1983) 33 Cal.3d 754, 764, superseded by statute on another point as stated in In re 

Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8.) “Under section 739, „the law is settled that 

unless the magistrate makes factual findings to the contrary, the prosecution may amend 

the information after the preliminary hearing to charge any offense shown by the 

evidence adduced at the preliminary hearing provided the new crime is transactionally 

related to the crimes for which the defendant has previously been held to answer.‟ 

[Citations.] „Under the case law interpreting section 1009, the test applied is whether or 

not the amendment changes the offense charged to one not shown by the evidence taken 

at the preliminary examination. [Citation.]‟ [Citation.] As long as the above standards 

are met, there is no bar to adding to the information enhancement allegations that were 

not charged in the complaint.” (Mendella, supra, 33 Cal.3d 754; § 1009 [“indictment or 

accusation cannot be amended so as to change the offense charged, nor an information so 

as to charge an offense not shown by the evidence taken at the preliminary 

examination”].) 

Defendant does not dispute that the one-strike torture allegation was shown by the 

evidence adduced at the preliminary hearing. Nor does he dispute the transactional 
25

relationship between this allegation and the crimes for which he was held to answer. 

Instead, he relies on Graff, supra, 170 Cal.App.4th 345, and People v. Berkowitz (1977) 

68 Cal.App.3d Supp. 9 (Berkowitz), disapproved on other grounds in People v. Superior 

Court (Douglass) (1979) 24 Cal.3d 428, in arguing he was prejudiced by the “late 

amendment” of the information. Such reliance is misplaced. 

In Graff, supra, 170 Cal.App.4th 345, the Court of Appeal reversed the 

defendant‟s convictions on two counts of committing a lewd or lascivious act on a child 

of 14 or 15 years in violation of section 288, subdivision (c), “because the jury was 

permitted to convict based on charges not established at the preliminary hearing.” (Id. at 

p. 349.) The defendant was initially charged with six such counts. At the preliminary 

hearing, the victim testified to five incidents of lewd conduct committed by the 

defendant, two of which involved defendant watching her masturbate. Because the 

victim was not certain whether the masturbation incidents occurred before or after she 

turned 16 years old, the magistrate dismissed the two counts that were based on these 

incidents. After the hearing, an information was filed charging the defendant with three 

counts of violating section 288, subdivision (c). (Id. at pp. 350-351.) 

At trial, the victim testified to the same five incidents of lewd conduct. She was 

allowed to testify concerning the masturbation incidents “as indicative of motive or 

intent” under Evidence Code section 1101. (Graff, supra, 170 Cal.App.4th at p. 352.) 

This time, she testified she was 15 years old when the first masturbation incident 

occurred, but was unsure when the second incident occurred. (Id. at p. 354.) In the 

defense closing argument, defense counsel stated that there were “[n]o charge[s] 

concerning the masturbation episodes.” (Id. at p. 357.) In rebuttal, the prosecutor 

disagreed and argued the defendant could be convicted of “any lewd act that he 

committed with [the victim] while she was 14 or 15 years old,” including the 

masturbation incidents. (Id. at p. 358.) The jury convicted the defendant of two counts 

of violation of section 288, subdivision (c). (Id. at p. 360.) 
26

The Court of Appeal reversed, holding that the defendant‟s “due process rights to 

notice of the charges against him were violated by the prosecution‟s decision to go 

forward with charges not established at the preliminary hearing.” (Graff, supra, 170 

Cal.App.4th at p. 360.) The court first explained the magistrate was correct in ruling “the 

prosecution failed to present evidence [at the preliminary hearing] that the masturbation 

incidents fell within the time frame necessary to establish a section 288, 

subdivision (c)(1), violation.” (Id. at p. 361.) The court then explained “the prosecution 

did not seek, and the trial court did not permit, an amendment [of the information] at any 

time.” (Id. at p. 362.) In response to the Attorney General‟s argument that “ „the trial 

court‟s act of allowing the jury to convict [defendant] on the basis of [the masturbation] 

incidents amounted to a constructive amendment‟ ” of the information, the court 

explained such an amendment would not have been proper because “late amendments are 

not permitted where the defendant would be prejudiced. [The defendant] was prejudiced 

by the failure of the prosecution to make its theory clear prior to the last phase of closing 

argument. In cross-examining [the victim], defense counsel had no reason to pin down 

the dates of the masturbation incidents or to impeach [the victim] with her earlier 

testimony that she could not remember when either of the incidents occurred.” (Ibid.) 

The court further explained that, “even where the prosecution complies with the 

necessary procedures and no specific prejudice is shown, appellate courts are compelled 

to reverse convictions where substantial evidence was presented at trial that did not 

correspond to the charges established at the preliminary hearing.” (Ibid.) 

Defendant argues: “Thus, Graff stands for the proposition that the amendment of 

an accusatory pleading after the close of evidence to place in dispute an essential element 

previously of no real consequence prejudices a defendant‟s „substantial rights‟ if the 

element presents fertile grounds for cross-examination.” “[B]ecause the most crucial 

evidence against [defendant] was already closed,” i.e., Cindy H.‟s conditional 

examination testimony, the amendment adding the one-strike torture allegation “had all 
27

the hallmarks of a „late amendment.‟ ” Defendant argues he was prejudiced by this late 

amendment because: “Had defense counsel known that the relationship between the 

torture and sexual penetration charges was at issue when he examined [Cindy H.] ‒ -

indeed so much so as to elevate [defendant‟s] exposure to 25 years to life imprisonment 

‒ - he could have questioned her in an effort to undermine any connection between the 

two.” We disagree for two reasons. 

First, defendant mischaracterizes the holding in Graff, supra, 170 Cal.App.4th 

345. As explained, Graff held that the defendant‟s “due process rights to notice of the 

charges against him were violated by the prosecution‟s decision to go forward with 

charges not established at the preliminary hearing.” (Graff, supra, 170 Cal.App.4th at 

p. 360.) Here, Cindy H.‟s preliminary hearing testimony established that defendant 

“inflict[ed] great bodily injury” on her “with the intent to cause cruel or extreme pain and 

suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.” 

(§ 206.) This testimony also established that he did so “in the commission of” the crime 

of unlawful sexual penetration with a foreign object. (§ 667.61, subd. (d)(3).) 

Accordingly, unlike Graff, the information in this case was not amended to add a charge 

or enhancement allegation that was not established at the preliminary hearing. 

Second, we disagree that defendant was prejudiced by the amendment because his 

attorney was unable to question Cindy H. concerning the connection between the torture 

and the sexual assault. As we explained in the previous section of this opinion, defendant 

had an adequate opportunity to cross-examine Cindy H. concerning the facts surrounding 

the torture during the conditional examination. As defendant acknowledges, Cindy H. 

testified that defendant inserted the batteries into her rectum after she was already 

paralyzed. Nevertheless, defendant posits that his attorney “could have sought to elicit, 

for example, that [defendant] penetrated [Cindy H.] before he subjected her to any 

serious physical abuse, i.e., just after she voluntarily took off her bathing suit bottom to 

become completely naked before him.” However, even if defendant inserted the batteries 
28

into Cindy H.‟s rectum before he viciously assaulted her, this would not negate the 

connection between the sex offense and the torture for purposes of section 667.61 

subdivision (d)(3). Indeed, this order of events would cause the case to more closely 

resemble Jones, supra, 25 Cal.4th 98, where the sex offense was technically completed 

before the knife was used to maintain control over the victim. Similarly, here, even if the 

sex offense was technically completed before the torture began, this offense still “was 

more culpable” because defendant used the subsequent debilitating assault to maintain 

control over his victim. (Id. at p. 110.) 

Defendant further posits that “counsel could have sought to elicit that [Cindy H.] 

and/or [defendant] left and then returned to the apartment after the sexual penetration and 

before the torture. If such cross-examination were successful, it would have undermined 

that [defendant] maintained control over [Cindy H.] during one „continuous transaction‟ 

involving both the sex crime and torture.” This is pure speculation. Cindy H. testified 

quite clearly that she was paralyzed when the sexual assault occurred. Thus, she did not 

possess the ability to leave the apartment. And even if defendant left, this would not have 

lessened the control he had over Cindy H. by virtue of her inability to move. Further, it 

does not matter whether defendant left and came back because torture can be committed 

by a course of conduct over time. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 

1427-1429.) We find no prejudice. 

Nor are we persuaded by defendant‟s reliance on Berkowitz, supra, 68 Cal.App.3d 

Supp. 9. There, a misdemeanor complaint charging the defendant with two counts of 

practicing medicine without a license was amended at the close of the trial to add two 

new counts alleging he also dispensed dangerous drugs without a good faith prior 

examination. (Id. at p. 12.) With respect to the newly-added counts, the appellate 

department of the Los Angeles County Superior Court reversed the defendant‟s 

convictions, explaining: “We think that the action of the trial court clearly prejudiced the 

substantial rights of the defendant. As a matter of elemental due process it prevented his 
29

counsel from conducting research to see whether testimony could be presented to 

overcome the new charge. It requires no citation of authority to state the proposition that 

the giving of notice is a basic essential of due process.” (Id. at p. 14.) Acknowledging 

the rule that trial amendments in felony cases are limited to charges supported by the 

evidence at the preliminary hearing, the People argued misdemeanor cases “are not as 

serious and „it is more a matter of determining the propriety and fairness of adding a new 

count‟ in a misdemeanor case.” (Ibid.) The court responded “that the unfairness is 

inherent in requiring an unprepared and unforewarned defendant to submit an already 

tried case to a jury without any opportunity to think about a defense to a newly 

interposed charge.” (Id. at pp. 14-15.) 

Here, unlike Berkowitz, supra, 68 Cal.App.3d Supp. 9, the amendment was 

supported by evidence taken at the preliminary hearing. This supplied sufficient notice to 

satisfy defendant‟s due process rights. 

There was no due process violation. And for reasons expressed previously, we 

also find no violation of defendant‟s right of confrontation. 

III

Denial of Defendant’s Request for a Continuance

In the alternative, defendant claims the trial court prejudicially erred when it 

denied his motion for a continuance rather than construe that motion as a request to 

discharge the jury, declare a mistrial, and have the case set for trial at a later date. Not so. 

“Granting or denying a motion for midtrial continuance is within the sound 

discretion of the trial court, which must consider not only the benefit the moving party 

anticipates, but also the likelihood the benefit will result.” (People v. Gonzales (2011) 52 

Cal.4th 254, 291.) The trial court must also consider “ „the burden on other witnesses, 

jurors and the court and, above all, whether substantial justice will be accomplished or 

defeated by a granting of the motion. In the lack of a showing of an abuse of discretion 

or of prejudice to the defendant, a denial of his motion for a continuance cannot result in 
30

a reversal of a judgment of conviction.‟ ” (Zapien, supra, 4 Cal.4th at p. 972; People v. 

Fudge (1994) 7 Cal.4th 1075, 1105-1106.) 

As mentioned, defendant objected to playing Cindy H.‟s conditional examination 

for the jury and asked for a continuance of an unspecified duration, as he put it, “to see if 

we can obtain [Cindy H.‟s] testimony either live or by video conference.” The trial court 

denied the motion, noting that Cindy H. could be on the ventilator for two or three weeks 

and may lose the ability to speak if a tracheotomy is performed. The trial court also 

noted that, “in the best case scenario, it would be at least a month before she could testify 

in a reasonable and informed way,” and there was “no guarantee at all that [she] will be 

available to testify” because “she may not survive at all.” The trial court concluded: “So 

there is not a rationale [sic] reason to continue based on really only a possibility that at 

some future point far beyond the normal termination of this trial that [Cindy H.] would be 

able to testify.” 

We find no abuse of discretion. Nor does defendant argue the requested 

continuance should have been granted. Instead, citing People v. Ramirez (1972) 27 

Cal.App.3d 660 (Ramirez), he argues the trial court should have construed his motion for 

a continuance as a request to discharge the jury, declare a mistrial, and have the case set 

for trial at a later date. 

In Ramirez, the defendant was arraigned on an information charging him with 

escape from state prison. He pled not guilty. After the jury was sworn, the trial court 

allowed the prosecution to amend the information to add a charge of escape by a person 

committed as a narcotic addict. Defense counsel requested a continuance of “[t]wo or 

three weeks” to prepare to go to trial on the new charge. (Ramirez, supra, 27 Cal.App.3d 

at pp. 668, 663.) The trial court granted the continuance and asked defense counsel 

whether the case should be referred back to the criminal department for the setting of a 

new trial date. Counsel agreed. The trial court then assigned the case back to the 

criminal department and discharged the jury. Following the subsequent trial, defendant 
31

appealed his conviction and argued that double jeopardy principles barred retrial on the 

charge of escape. (Id. at p. 668.) The Court of Appeal disagreed, holding that defendant 

had impliedly consented to the discharge of the jury through his attorney‟s request for a 

continuance of two to three weeks together with his request that the case be referred back 

to the criminal department for the setting of a new trial date. (Id. at pp. 669-670.) 

Nothing in Ramirez, supra, 27 Cal.App.3d 660 suggests the trial court has a sua 

sponte duty to construe a motion for a lengthy midtrial continuance as a request to 

discharge the jury, declare a mistrial, and have the case set for trial at a later date. 

Moreover, had the trial court done so, an argument could be made that, unlike Ramirez, 

defendant‟s attorney did not request that the case be referred back to the criminal 

department for the setting of a new trial date. Thus, discharge of the jury may well have 

prevented retrial. We need not resolve this question here. We do hold that the trial court 

was not required to construe defendant‟s motion for a continuance as a request to 

discharge the jury and declare a mistrial. 

IV

Admission of a Prior Act of Domestic Violence

We also reject defendant‟s contention the trial court prejudicially erred in 

admitting into evidence a July 4, 1998, act of domestic violence perpetrated against 

defendant‟s former girlfriend, Cynthia Nielsen. 

A.

Additional Background

Nielsen testified to four incidents of domestic violence committed by defendant 

between 1998 and 1999. The consumption of alcohol preceded each assault. Because 

defendant challenges the admission of only the first of these assaults, we shall not recite 

the details of the other three incidents. 

Defendant moved in with Nielsen and her daughter sometime in 1997. On July 4, 

1998, after visiting a bar and attending a barbeque, defendant and Nielsen were driving to 
32

defendant‟s mother‟s house to pick up Nielsen‟s daughter. As Nielsen drove, defendant 

started hitting her. She stopped the car, got out, and ran across a field. Defendant gave 

chase, caught up to her, and “started beating on [her] in the face.” When she fell to the 

ground, defendant climbed on top of her and continued the assault. He then “put his 

hands around [her] throat, and he said „I‟ve never killed anyone before, but now I have to 

kill you.‟ ” While she was being choked, Nielsen managed to say her daughter‟s name, 

which prompted defendant to release her throat. Still on top of Nielsen, defendant “just 

sat back” and “looked at [her].” Nielsen said: “We have to go.” They then went back to 

the car and continued on to defendant‟s mother‟s house. When they arrived, Nielsen 

screamed out for her daughter, who ran outside to see what was going on. Nielsen and 

her daughter then ran “six or eight blocks” to a friend‟s house, where police and 

paramedics were called. Nielsen was taken to the hospital. While there were no broken 

bones, “both eyes were black and swollen” and she “had bruises all over.” 

B.

Analysis

Generally, “evidence of a person‟s character or a trait of his or her character 

(whether in the form of an opinion, evidence of reputation, or evidence of specific 

instances of his or her conduct) is inadmissible when offered to prove his or her conduct 

on a specified occasion.” (Evid. Code, § 1101, subd. (a).) However, with certain 

exceptions, Evidence Code section 11096 provides that, “in a criminal action in which the 

defendant is accused of an offense involving domestic violence, evidence of the 

defendant‟s commission of other domestic violence is not made inadmissible by Section 

1101 if the evidence is not inadmissible pursuant to Section 352.” (§ 1109, subd. (a)(1).) 

One such exception is found in subdivision (e), which provides: “Evidence of acts 

 

6 References to subdivisions of section 1109 are to Evidence Code section 1109. 
33

occurring more than 10 years before the charged offense is inadmissible under this 

section, unless the court determines that the admission of this evidence is in the interest 

of justice.” (§ 1109, subd. (e).) 

Thus, where a prior act of domestic violence is not more than 10 years old, 

evidence of the act is admissible unless the trial court determines the “probative value is 

substantially outweighed by the probability that its admission will (a) necessitate undue 

consumption of time or (b) create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury.” (Evid. Code, §§ 352, 1109, subd. (a)(1).) Where the 

prior act of domestic violence is more than 10 years old, evidence of the act is 

inadmissible unless the trial court determines “the admission of this evidence is in the 

interest of justice.” (§ 1109, subd. (e).) Both determinations are reviewed for abuse of 

discretion. (People v. Johnson (2010) 185 Cal.App.4th 520, 531, 539 (Johnson).) 

Here, as defendant correctly observes, the July 4, 1998, act of domestic violence 

committed against Nielsen occurred more than 10 years before the charged crimes, 

subjecting it to the “more stringent standard of admissibility” of subdivision (e). 

(Johnson, supra, 185 Cal.App.4th at p. 539.) However, “the „interest of justice‟ 

requirement obviously was not intended to present an insurmountable obstacle to 

admission of more remote prior conduct. Nor do we think subdivision (e) necessitates an 

inquiry different in kind from that involved in a determination under [Evidence Code] 

section 352. The [Evidence Code] section 352 balancing approach gives consideration to 

both the state‟s interest in a fair prosecution and the individual‟s constitutional rights. 

We believe this same type of analysis is appropriate for the „interest of justice‟ exception 

under subdivision (e). [¶] To the extent a higher degree of scrutiny is called for, it is the 

conclusion drawn from the balancing test, not the process itself, that must change under 

subdivision (e). Under subdivision (a)(1) and [Evidence Code] section 352, evidence 

may be excluded only where its probative value is „substantially outweighed‟ by its 

prejudicial effect [or the other statutory counterweights, i.e., undue consumption of time, 
34

confusion of the issues, and misleading the jury]. Though it reversed the presumption in 

subdivision (e), we believe the Legislature intended to allow admission of evidence 

whose probative value weighs more heavily on those same scales.” (Ibid.) 

1.

Probative Value

The probative value of the July 4, 1998, incident was great. “ „The principal factor 

affecting the probative value of an uncharged act is its similarity to the charged offense. 

Other factors affecting the probative value include the extent to which the source of the 

evidence is independent of the charged offense, and the amount of time between the 

uncharged acts and the charged offense.‟ ” (People v. Hollie (2010) 180 Cal.App.4th 

1262, 1274.) “Section 1109 was intended to make admissible a prior incident „similar in 

character to the charged domestic violence crime, and which was committed against the 

victim of the charged crime or another similarly situated person.‟ [Citation.] Thus, the 

statute reflects the legislative judgment that in domestic violence cases, as in sex crimes, 

similar prior offenses are „uniquely probative‟ of guilt in a later accusation. [Citation.] 

Indeed, proponents of the bill that became section 1109 argued for admissibility of such 

evidence because of the „typically repetitive nature‟ of domestic violence. [Citation.] 

This pattern suggests a psychological dynamic not necessarily involved in other types of 

crimes. [Citation.]” (Johnson, supra, 185 Cal.App.4th at p. 532; see also People v. 

Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.) 

Here, the July 4, 1998, incident was similar in character to the charged crimes and 

was committed against a similarly situated person. Prior to each incident, defendant had 

been drinking. In both incidents, defendant violently assaulted his girlfriend in a manner 

that made it difficult for her to get help. This was accomplished in the July 4, 1998, 

incident by assaulting Nielsen on a rural road, where her only means of escape was 

running through a field. In the charged crimes, as well as the other assaults committed 

against Cindy H., defendant blocked her access to the door to the apartment and either 
35

told her to remove her clothes or removed them for her. While factually different, it can 

be inferred from each incident that defendant‟s motive was to prevent his victim‟s escape. 

Moreover, both incidents involved a level of violence that required trips to the hospital. 

In the July 4, 1998, incident, defendant severely beat, choked, and threatened to kill 

Nielsen. In the charged crimes, defendant broke Cindy H.‟s spine, resulting in 

quadriplegia. 

Paraphrasing the opinion in Johnson, supra, 185 Cal.App.4th at page 533, the 

common factors in each incident strongly suggest defendant has a problem with anger 

management, specifically with regard to female intimate partners, and specifically when 

he has been drinking. He has also shown a pattern of attempting to limit their means of 

escape and inflicting serious injury during the assault. “Whatever the psychological 

forces at work, the Legislature has concluded that in these types of cases, evidence of 

past domestic violence is particularly probative of the likelihood to repeat such 

behavior.” (Ibid.) 

We also note the probative value of the July 4, 1998, incident is enhanced by the 

fact that Nielsen‟s testimony was independent of the charged offenses. (Johnson, supra, 

185 Cal.App.4th at p. 533.) And while more than 10 years passed between the July 4, 

1998, incident and the charged offenses, defendant has not “led a substantially blameless 

life in the interim.” (Id. at p. 534.) Indeed, the July 4, 1998, incident was the first of four 

assaults committed against Nielsen. In each of those assaults, defendant continued the 

pattern of becoming violent after drinking. This pattern continued when he became 

intimately involved with Cindy H. The incident that encompasses the charged offenses 

was the last of “four or five” assaults against her. Thus, the passage of about 11 years 

between the July 4, 1998, incident and the charged crimes does not “significantly lessen 

the probative value of [the] evidence.” (People v. Ewoldt (1994) 7 Cal.4th 380, 405 

[uncharged molestation incident involving prior victim occurred about 12 years prior to 

trial; probative value not significantly lessened because only a few years elapsed between 
36

the time defendant stopped molesting that victim and started molesting victim of the 

charged crimes].) 

2.

Prejudicial Effect and the Other Statutory Counterweights

The probative value of the July 4, 1998, incident was not outweighed by the 

danger of undue prejudice. “ „The factors affecting the prejudicial effect of uncharged 

acts include whether the uncharged acts resulted in criminal convictions and whether the 

evidence of uncharged acts is stronger or more inflammatory than the evidence of the 

charged offenses.‟ ” (People v. Hollie, supra, 180 Cal.App.4th at p. 1274.) 

Here, as was the case in Johnson, supra, 185 Cal.App.4th 520, defendant was 

convicted of the July 4, 1998, assault on Nielsen. “Although the jury was not so 

informed, the fact that the prior misconduct had resulted in conviction . . . reduced the 

likelihood that defendant could have produced evidence to rebut [Nielsen‟s] testimony. 

Therefore, the unfairness of forcing a defendant to mount a defense against evidence of a 

long-past incident was not a legitimate consideration in this case.” (Id. at p. 533.) 

Also like Johnson, supra, 185 Cal.App.4th 520, the July 4, 1998, incident was 

“somewhat inflammatory.” (Id. at p. 533.) Defendant assaulted Nielsen, chased her into 

a field to continue the assault, threatened to kill her, and then choked her, stopping only 

after she said her daughter‟s name. However, the trial court concluded this incident was 

“less severe than the incident charged,” which it characterized as “one of the more severe 

instances of domestic violence this court has seen outside, of course, of murder.” We 

agree with this assessment. While damaging, the July 4, 1998, incident was not unduly 

prejudicial. “[E]vidence is unduly prejudicial under [Evidence Code] section 352 only if 

it „uniquely tends to evoke an emotional bias against the defendant as an individual and 

. . . has very little effect on the issues‟ [citation], or if it invites the jury to prejudge „“a 

person or cause on the basis of extraneous factors.”‟ [Citation.] „Painting a person 
37

faithfully is not, of itself, unfair.‟ ” (Id. at p. 534, quoting People v. Harris (1998) 60 

Cal.App.4th 727, 737.) 

Finally, presentation of the July 4, 1998, incident did not “necessitate undue 

consumption of time” or “create substantial danger of . . . confusing the issues, or of 

misleading the jury.” (Evid. Code, § 352.) Nielsen‟s testimony about this incident 

spanned slightly more than two pages of transcript. She covered all four prior incidents 

in less than seven pages of transcript. With respect to confusing the issues or misleading 

the jury, more than eight years elapsed between the last assault on Nielsen and the first 

assault on Cindy H. Thus, like Johnson, supra, 185 Cal.App.4th 520, “[t]he past acts of 

violence were separated by time and involved [a] different victim[] and witness[]. And 

there was no deception or confusion engendered by the arguments of counsel.” (Id. at 

p. 533.) 

The trial court did not abuse its discretion in concluding the July 4, 1998, assault 

against Nielsen was admissible under section 1109, subdivision (e). 

V

Sexual Penetration Instruction

Defendant further asserts his sexual penetration conviction must be reversed 

because CALCRIM No. 1045 “related the necessary mental state of sexual abuse, 

gratification or arousal to only the prohibited act of sexual penetration.” Defendant 

argues this instruction should also have related this mental state to “the means by which 

the sexual penetration is accomplished, i.e., the application of force, fear etc.” Defendant 

did not object to this instruction at trial. “Failure to object to instructional error forfeits 

the issue on appeal unless the error affects defendant‟s substantial rights. [Citations.] 

The question is whether the error resulted in a miscarriage of justice under People v. 

Watson (1956) 46 Cal.2d 818. [Citation.]” (People v. Anderson (2007) 152 Cal.App.4th 

919, 927.) We find no error, much less a miscarriage of justice. 
38

Section 289, subdivision (a)(1)(A), provides: “Any person who commits an act of 

sexual penetration when the act is accomplished against the victim‟s will by means of 

force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the 

victim or another person shall be punished by imprisonment in the state prison for three, 

six, or eight years.” Subdivision (k)(1) of this section provides: “ „Sexual penetration‟ is 

the act of causing the penetration, however slight, of the genital or anal opening of any 

person or causing another person to so penetrate the defendant‟s or another person‟s 

genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any 

foreign object, substance, instrument, or device, or by any unknown object.” 

As relevant to the claimed instructional error, CALCRIM No. 1045 informed the 

jury: “The defendant is charged in Count Four with sexual penetration by force in 

violation of . . . Section 289. To prove that the defendant is guilty of this crime, the 

People must prove that: [¶] 1.) The defendant committed an act of sexual penetration 

with another person. [¶] 2.) The penetration was accomplished by using a foreign 

object. [¶] 3.) The other person did not consent to the act. [¶] And 4.) The defendant 

accomplished the act by force, violence, duress, menace or fear of immediate and 

unlawful bodily injury to another person. [¶] Sexual penetration means penetration 

however slight of the anal opening of the other person for the purpose of sexual abuse, 

arousal or gratification. [¶] Penetration for sexual abuse means penetration for the 

purpose of causing pain, injury or discomfort.”7 

 

7 The instruction continued: “In order to consent, a person must act freely and 

voluntarily and know the nature of the act. [¶] Evidence that the defendant and the other 

person dated is not enough by itself to constitute consent. . . . [¶] An act is accomplished 

by force if a person uses enough physical force to overcome the other person‟s will. [¶] 

Duress means a direct or implied threat of force, violence, danger, hardship or retribution 

that is enough to cause a reasonable person of ordinary sensitivity to do or to submit to 

something that she [or he] would not otherwise do or submit to. [¶] When deciding 

whether the act was accomplished by duress, consider all the circumstances including the 

age of the other person and her [or his] relationship to the defendant. [¶] Retribution is a 
39

The trial court also instructed the jury with CALCRIM No. 252, providing that 

“[t]he crimes and other allegations charged in this case require proof of the union or joint 

operation of act and wrongful intent,” and described “unlawful sexual penetration with 

the foreign object as charged in Count Four” as a “specific intent” crime, requiring that 

defendant “must not only intentionally commit the prohibited act or intentionally fail to 

do the required act, but must do so with a specific intent and mental state. The act and 

the specific intent and mental state required are explained in the instruction for that crime 

or allegation.” 

Defendant claims the specific intent required for the crime of unlawful sexual 

penetration is like that required for the crime of robbery. He argues: “The mental state 

for robbery, the intent to permanently deprive, applies to two acts necessary for 

commission of the offense ―- (1) the taking of the victim‟s property and (2) the means 

by which the taking is accomplished, i.e., the application of force or fear. [Citation.] If 

the defendant applies force to the victim for a purpose unrelated to theft, such as anger, 

fear, jealousy, or revenge, and then, seeing the victim disabled, decides to take advantage 

of the situation by taking an item of his or her personal property, the offense is not 

robbery because „there is no “joint operation of act and intent. . . .”‟ [Citations.] The 

pattern instruction defining robbery explicitly requires concurrence between the 

prohibited mental state and both prohibited acts, the taking of property and the 

application of force or fear. [Citation.] Due to the similarities in definition between the 

 

form of payback or revenge. [¶] Menace means a threat, statement or act showing an 

intent to injure someone. [¶] An act is accomplished by fear if the other person is 

actually and reasonably afraid. [¶] The defendant is not guilty of forcible sexual 

penetration if he [or she] actually and reasonably believed that the other person consented 

to the act. The People have the burden of proving beyond a reasonable doubt that the 

defendant did not actually and reasonably believe that the other person consented. [¶] If 

the People have not met this burden, you must find the defendant not guilty.” 
40

crimes of robbery and sexual penetration with a foreign object, their concurrence 

requirements should be interpreted similarly.” 

The Attorney General argues the crime of unlawful sexual penetration is a general 

intent crime, requiring defendant to have harbored only the intent to commit the acts 

constituting the crime. According to the Attorney General‟s view, “[t]he fact that the 

term „sexual penetration‟ is defined as being for the purposes of sexual abuse[,] arousal[,] 

or gratification does not mean that the force, violence, or duress be inflicted with the 

specific intent to commit the act of sexual penetration. [Citations.]” 

The case law only tangentially addresses whether the crime of unlawful sexual 

penetration is a specific or general intent crime and appears to be in conflict. 

In People v. Dillon (2009) 174 Cal.App.4th 1367, the defendant claimed 

CALCRIM No. 890, the pattern jury instruction for the crime of assault with intent to 

commit unlawful sexual penetration (§ 220) was deficient for failing to inform the jury 

that the prosecution had the burden of proving lack of consent. (Id. at p. 1378.) 

Agreeing with the defendant that section 220 “requires not only the specific intent to 

commit the underlying sexual act, but a specific intent to commit that act without the 

consent of the victim,” the Court of Appeal nevertheless held that “[a] reasonable juror 

reviewing CALCRIM No. 1045, as instructed by CALCRIM No. 890, would conclude 

that unless he acted against the will or consent of the complainant, [the defendant] could 

not have held the specific intent to commit the crime of penetration of the genital opening 

of another by force, and therefore could not be guilty of the lesser included assault 

offense as defined in CALCRIM No. 890.” (Id. at p. 1379.) 

Rejecting the defendant‟s argument that “because CALCRIM No. 1045 fails to 

define the intent required for the crime of forcible sexual penetration, the jury would be 

unable to determine from looking at CALCRIM No. 1045 whether the defendant had the 

intent to commit that offense when he performed the act constituting the assault,” the 

Court of Appeal stated: “As [the defendant] and the People both agree, and contrary to 
41

the trial court‟s instruction under CALCRIM No. 252, forcible sexual penetration is a 

general intent crime. The defendant need not harbor the intent to commit a crime as long 

as he intended to commit the act or acts constituting the crime. But the mental state 

required to be found guilty of forcible sexual penetration is not the same as the specific 

intent to commit that crime. [Citation.] Reading CALCRIM No. 1045 to determine the 

intent required under CALCRIM No. 890, jurors would reasonably conclude that if the 

prosecution failed to prove the complainant‟s lack of consent, the defendant could not be 

guilty of assault with intent to commit forcible sexual penetration.” (People v. Dillon, 

supra, 174 Cal.App.4th at p. 1380.) 

In People v. Senior (1992) 3 Cal.App.4th 765, the defendant claimed the trial court 

erred by failing to instruct the jury that the crime of unlawful sexual penetration required 

the specific intent to commit the offense “by „force, violence, duress, menace, or fear of 

immediate and unlawful injury.‟ ” (Id. at p. 776.) The Court of Appeal disagreed, 

explaining: “This element . . . does not require a specific intent. It describes types of 

intimidating conduct by the defendant and not any particular state of mind of the 

defendant. . . . The only specific intent involved in foreign object penetration is „the 

purpose of sexual arousal, gratification, or abuse.‟ (§ 289, subd. (a).)” (Ibid.; see also 

People v. Stone (1994) 27 Cal.App.4th 276, 282-283 [assuming defendant submitted case 

on basis of victim‟s grand jury testimony, Court of Appeal held this did not amount to a 

slow plea of guilty because defendant did not concede guilt on charges but instead 

argued, among other things, that foreign object penetration was not done for sexual 

arousal or gratification and that voluntary intoxication negated specific intent].) 

Based on the language of section 289 and our Supreme Court‟s guidance with 

respect to the difference between specific and general intent crimes, we conclude the 

crime of unlawful sexual penetration requires the specific intent to gain sexual arousal or 

gratification or to inflict abuse on the victim. However, as long as the act of penetration 

is done with this specific intent, and that act is “accomplished against the victim‟s will by 
42

means of force, violence, duress, menace, or fear of immediate and unlawful bodily 

injury on the victim or another person” (§ 289, subd. (a)(1)(A)), the crime has been 

committed. This is so regardless of whether the force, violence, duress, menace, or fear 

is also used with the intent to gain sexual arousal or gratification or to inflict abuse on the 

victim. 

“ „When the definition of a crime consists of only the description of a particular 

act, without reference to intent to do a further act or achieve a future consequence, we ask 

whether the defendant intended to do the proscribed act. This intention is deemed to be a 

general criminal intent. When the definition refers to defendant‟s intent to do some 

further act or achieve some additional consequence, the crime is deemed to be one of 

specific intent.‟ [Citation.]” (People v. Atkins (2001) 25 Cal.4th 76, 82.) Stated 

differently: “ „A crime is characterized as a “general intent” crime when the required 

mental state entails only an intent to do the act that causes the harm; a crime is 

characterized as a “specific intent” crime when the required mental state entails an intent 

to cause the resulting harm.‟ [Citation.]” (Id. at p. 86.) “Language that typically denotes 

specific intent crimes” includes “ „with the intent‟ to achieve or „for the purpose of‟ 

achieving some further act.‟ ” (Ibid.) In determining whether the Legislature intended to 

create a general or specific intent crime, we must look to the language of the statute. 

Issues of statutory interpretation are questions of law subject to de novo review. 

(Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492.) “Our fundamental task in 

interpreting a statute is to determine the Legislature‟s intent so as to effectuate the law‟s 

purpose. We first examine the statutory language, giving it a plain and commonsense 

meaning. We do not examine that language in isolation, but in the context of the 

statutory framework as a whole in order to determine its scope and purpose and to 

harmonize the various parts of the enactment. If the language is clear, courts must 

generally follow its plain meaning unless a literal interpretation would result in absurd 

consequences the Legislature did not intend. If the statutory language permits more than 
43

one reasonable interpretation, courts may consider other aids, such as the statute‟s 

purpose, legislative history, and public policy. [Citations.]” (Coalition of Concerned 

Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737; San Leandro 

Teachers Assn. v. Governing Bd. of San Leandro Unified School Dist. (2009) 46 Cal.4th 

822, 831.) 

As mentioned, section 289, subdivision (a)(1)(A), makes it a felony to commit “an 

act of sexual penetration when the act is accomplished against the victim‟s will by means 

of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the 

victim or another person.” Read in isolation, this subdivision appears to set forth a 

general intent crime. (See People v. DePriest (2007) 42 Cal.4th 1, 48 [“Forcible rape is a 

general intent crime involving an act of sexual intercourse accomplished against the 

victim‟s will by means of force or fear”].) However, we must read this subdivision 

together with subdivision (k)(1) of section 289, which defines the act of sexual 

penetration to be “the act of causing the penetration, however slight, of the genital or anal 

opening of any person or causing another person to so penetrate the defendant‟s or 

another person‟s genital or anal opening for the purpose of sexual arousal, gratification, 

or abuse by any foreign object, substance, instrument, or device, or by any unknown 

object.” (§ 289, subd. (k)(1), italics added.) This definition refers to the defendant‟s 

intent to achieve an “additional consequence,” i.e., arousal, gratification, or abuse. 

(People v. Atkins, supra, 25 Cal.4th at p. 82.) Thus, in drafting section 289, the 

Legislature required the act of penetration to be committed with the specific intent to gain 

sexual arousal or gratification or to inflict abuse on the victim. 

CALCRIM No. 1045 accurately described the crime of unlawful sexual 

penetration for the jury. And CALCRIM No. 252 correctly informed the jury that 

defendant was required to possess the specific intent described in CALCRIM No. 1045. 

We find no error. 
44

Nor are we persuaded by defendant‟s analogy to the crime of robbery. “Robbery 

is the felonious taking of personal property in the possession of another, from his [or her] 

person or immediate presence, and against his [or her] will, accomplished by means of 

force or fear.” (§ 211.) Thus, “[r]obbery is larceny with the aggravating circumstances 

that „the property is taken from the person or presence of another‟ and „is accomplished 

by the use of force or by putting the victim in fear of injury.‟ [Citation.]” (People v. 

Anderson (2011) 51 Cal.4th 989, 994.) While the larceny statute (§ 484) does not set 

forth the intent required, our Supreme Court has long held the crime to require a specific 

intent to steal, i.e., “to deprive the owner of the property permanently.” (People v. Brown

(1894) 105 Cal. 66, 69; People v. Kunkin (1973) 9 Cal.3d 245, 251.) This specific intent 

requirement is “part of the common law of larceny of which . . . section 484 is 

declaratory.” (People v. Davis (1998) 19 Cal.4th 301, 318, fn. 15.) For purposes of 

larceny, the intent to steal “must exist at the time of the taking and carrying away.” 

(People v. Turner (1968) 267 Cal.App.2d 440, 444; § 20 [“In every crime or public 

offense there must be a union, or joint operation of act and intent, or criminal 

negligence”].) And while the robbery statute similarly does not set forth the intent 

required, this crime also requires a specific intent to steal, which must exist at the time of 

the act of force or intimidation used to accomplish the taking and carrying away. (People 

v. Anderson, supra, 51 Cal.4th at p. 994; People v. Huggins (2006) 38 Cal.4th 175, 214.) 

This too is part of the common law of robbery, of which section 211 is declaratory. (See 

People v. Gomez (2008) 43 Cal.4th 249, 254, fn. 2.) 

Thus, robbery has been described as “a combination of assault and larceny.” (2 

Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 85, 

p. 118.) In order to constitute robbery, both the assault and the larceny must have been 

done with the specific intent to steal. 

In contrast to robbery, the crime of unlawful sexual penetration contains an 

express intent requirement that applies only to the act of penetration. (§ 289, subd. 
45

(k)(1).) We decline to extend this intent requirement to the act of force, violence, duress, 

menace, or fear of immediate and unlawful bodily injury. To do so would contravene the 

plain meaning of the statute. Nor is the crime of unlawful sexual penetration a 

combination of assault and another offense, with common law roots requiring the specific 

intent necessary to commit the other offense at the time of the assault. As we have 

explained, the Legislature did not remain silent with respect to the intent necessary to 

commit the crime. It required the act of penetration to be done with the intent to gain 

sexual arousal or gratification or to inflict abuse on the victim, no more and no less. 

(§ 289, subds. (a)(1)(A) & (k)(1).) 

The trial court did not err by instructing the jury with CALCRIM No. 1045. And, 

in any event, any error would be harmless in light of the fact that the intent required to 

commit the act of sexual penetration includes an intent to abuse, meaning “to injure or 

hurt badly, not lewdness.” (People v. White (1986) 179 Cal.App.3d 193, 205.) 

Assuming the jury should have been instructed defendant was required to possess the 

specific intent to gain sexual arousal or gratification or to inflict abuse on Cindy H. while 

committing the assault that enabled him to penetrate her rectum with the batteries, based 

on these facts, we have no doubt the jury would have found he possessed the intent to 

abuse her during both the assault and the sexual penetration. 

VI

Denial of Defendant’s Motion to Replace Counsel

Defendant also contends the trial court “mishandled” his final Marsden motion, 

which was considered the same day as a new trial motion, by failing to inquire into his 

“complaint that trial counsel had provided ineffective assistance in failing to develop 

mental state evidence during trial and in connection with [the] pending new trial motion.” 

We are not persuaded. 
46

A.

Applicable Law

Our Supreme Court recently reiterated the rules governing the grant and review of 

Marsden motions: “„In [Marsden, supra, 2 Cal.3d 118], we held that a defendant is 

deprived of his [or her] constitutional right to the effective assistance of counsel when a 

trial court denies his [or her] motion to substitute one appointed counsel for another 

without giving him [or her] an opportunity to state the reasons for his [or her] request. A 

defendant must make a sufficient showing that denial of substitution would substantially 

impair his [or her] constitutional right to the assistance of counsel [citation], whether 

because of his [or her] attorney‟s incompetence or lack of diligence [citations], or 

because of an irreconcilable conflict [citations]. We require such proof because a 

defendant‟s right to appointed counsel does not include the right to demand appointment 

of more than one counsel, and because the matter is generally within the discretion of the 

trial court. [Citation.]‟ [Citation.] When reviewing whether the trial court abused its 

discretion in denying a Marsden motion, we consider whether it made an adequate 

inquiry into the defendant‟s complaints. [Citation.]” (People v. Mungia (2008) 44 

Cal.4th 1101, 1127-1128.) 

B.

Defendant’s Marsden Motions

Defendant filed a series of Marsden motions in this case. We need not recite in 

detail the facts surrounding each motion because, except for the final motion, defendant 

candidly admits “the trial court conscientiously allowed [him] to voice his complaints 

against counsel, allowed counsel to respond and, based on the information gathered, ruled 

on whether substitution was warranted.” Accordingly, we provide an overview of 

defendant‟s Marsden motions and recite in detail only the facts relating to the final 

motion. 
47

1.

Overview of the Marsden Motions

The first Marsden motion was filed on October 7, 2010, and withdrawn the same 

day. 

On November 9, 2010, defendant made an oral Marsden motion. Among other 

things, defendant complained that his attorney had not spent an appropriate amount of 

time discussing the case with him. Defendant also complained that, when he asked his 

attorney about whether he could have a competency hearing, his attorney responded that 

“he didn‟t think [defendant] would qualify for it.” As mentioned, defendant concedes his 

attorney addressed each of his concerns at the hearing on the motion. Nor does he 

dispute that the trial court appropriately denied substitution. After denying the motion, 

the trial court asked defense counsel to “check with records” and provide the court with 

specific dates he met with defendant between September and November. 

On November 16, 2010, during jury selection, the trial court stated on the record: 

“The defendant came in before we got on the record, expressed frustration about why he 

was here. Used the word pro per and indicated he was on medication.” The trial court 

then continued jury selection until the following day for defendant to speak to his 

attorney. 

On November 17, 2010, the trial court explained it had ordered “any psychiatric 

treatment records that [defendant] received in the jail be made available to [the court] in a 

sealed fashion,” that the court had not looked at them, and would not look at them, unless 

defense counsel expressed a doubt as to defendant‟s competency to stand trial. Defense 

counsel then reviewed the “three-page document” and stated he did not intend to declare 

a doubt about defendant‟s competency to stand trial. The trial court then heard from 

defense counsel, outside the prosecutor‟s presence, concerning the specific dates he met 

with defendant at the jail. When asked whether he still wanted to remove his current 
48

attorney as his counsel, defendant responded: “No.” The trial court confirmed its 

previous ruling denying substitution. 

On November 30, 2010, the evidentiary phase of the trial began. On December 6, 

2010, after the prosecution concluded its case-in-chief, defendant took the stand in his 

own defense. In response to defense counsel‟s seventh question, asking defendant 

whether he was present when Nielsen testified, defendant responded: “Your Honor, I ask 

for a mistrial. [My attorney] has been treating my case as I am [sic] guilty. I been [sic] 

in jail all this whole time chained to this chair, chained to that chair.” The trial court 

promptly interrupted defendant, cleared the courtroom, and asked if he was reasserting 

his Marsden motion. Defendant responded: “Yes, your Honor, the whole thing.” 

Among other things, defendant complained: “Instead of just pleading guilty, your 

Honor, there are other issues that I want brought up. He just refuse [sic] to listen to my 

story that I had.” When asked to elaborate on these other issues, defendant stated: 

“Well, just my mental state of mind at the time, that doesn‟t sound like a normal guy 

doing this stuff.” Addressing this concern, defense counsel explained: “My particular 

relationship with [defendant] is that I tried to be straight forward with him. What I have 

explained to him is that there is substantial evidence. [¶] I think his best defense lies in 

an absence of intent to kill and absence of intent to torture.” The trial court then asked 

defense counsel whether he gave defendant an opportunity to explain “what his theory 

was, why he was doing this or not doing that,” and whether defendant answered “at the 

level of detail [defense counsel] would normally expect.” Defense counsel responded: “I 

asked [defendant] repeatedly what his position was, how he would approach the facts of 

that evening, and he‟s never really had much of an explanation other than -- and it is 

consistent with our defense in this case, he never was trying to kill anybody. He wasn‟t 

trying to hurt anybody. It was a drunken fight between a couple which under the law 

that‟s not okay, but something of a pattern in his life. [¶] It is a felony assault because 
49

she was severely injured, but he was not trying to kill anybody. He wasn‟t trying to hurt 

anybody, and that‟s been consistently his position on the case.” 

The trial court denied substitution, finding that defense counsel “had a good 

understanding of [defendant‟s] point of view and attitudes about the case and his 

opinion.” The trial court also addressed defendant‟s remaining concerns. Again, 

defendant does not dispute that the trial court appropriately denied substitution. 

Following the Marsden hearing, defendant decided not to testify. As mentioned, he was 

convicted of torture, inflicting corporal injury on a cohabitant with an enhancement for 

inflicting great bodily injury causing paralysis, and unlawful sexual penetration with a 

one-strike finding he inflicted torture in the commission of the offense. 

2.

Defendant’s Final Marsden Motion

On January 3, 2011, defendant filed a final Marsden motion. On February 1, 

2011, defense counsel filed a new trial motion arguing that a new trial should be granted 

because the admission of Cindy H.‟s conditional examination testimony violated 

defendant‟s Sixth Amendment right of confrontation, the trial court further violated this 

right by allowing the prosecution to amend the information to add the one-strike torture 

allegation, and the trial court should not have allowed into evidence prior acts of 

domestic violence. 

On February 4, 2011, before the hearing on the new trial motion, the trial court 

heard from defendant concerning the Marsden motion. The trial court first explained it 

had reviewed the record of the previous Marsden motions. Defendant then stated his 

complaint: “I contacted [defense counsel] and asked him to come to the jail. . . . I told 

[defense counsel] I found some evidence under Brady versus Maryland. I would like to 

have him file motion [sic] for new trial. [¶] [Defense counsel] said no without even 

listening to what I had to say.” Defendant elaborated: “[M]y witnesses were talking 

about me passing out -- not passing out but blacking out. . . . [Y]ou asked [defense 
50

counsel] if I was competent to stand in court [sic]. Normally people do competency 

hearing [sic], correct?” The trial court explained: “I don‟t answer those kind[s] of 

questions because it depends on a whole complexity of facts. [¶] I am trying to get the 

specific evidence that you brought to his attention or wanted to bring to his attention.” 

Defendant answered: “Mental state of mind at the time of the crime.” He went on to 

explain: “How I wanted to bring it up, the mental state of mind at the time. But I was 

denied a competency hearing. [¶] I figured if I would had [sic] a competency hearing 

that would have give[n] a qualified witness to testify to my state of mind.” Asked who 

this witness was, defendant answered Cindy H. testified during the conditional 

examination that he had blacked out in the past and Nielsen also had information 

concerning incidents of defendant blacking out while they were dating. 

The trial court then clarified: “So this is how I‟m understanding your complaint. 

Your complaint is that [defense counsel] should have filed a new trial motion based on 

the failure to get a competency hearing, or to develop this information in front of the 

jury?” Defendant answered by further complaining defense counsel did not provide him 

with a copy of the trial transcript as he requested, defendant had to fight with defense 

counsel over everything, defense counsel never came to see him during the proceedings, 

defendant was not allowed to confront his accuser, and defense counsel told the jury 

defendant was guilty during closing argument. 

Defense counsel responded by explaining he had met with defendant twice since 

the jury returned its verdict. The first meeting was “tense.” Defendant wanted a copy of 

the trial transcript in connection with the new trial motion, and possibly a motion to have 

the judge removed from the trial. Defense counsel explained he did not see a basis to 

order the transcript or have the judge removed, prompting defendant to become “upset” 

and “frustrated.” The meeting ended in name calling. After this meeting, defense 

counsel drafted and filed a new trial motion based on the issues set forth above. He then 

returned to meet with defendant and had a “productive” meeting discussing the new trial 
51

motion and reviewing the probation report in anticipation of the sentencing hearing. 

With respect to defendant‟s complaint concerning the closing argument, defense counsel 

explained he discussed with defendant his strategy of conceding the assault on Cindy H., 

but attacking the charges of attempted murder and torture based on negating the specific 

intent required for the commission of those crimes. 

The trial court denied the motion. With respect to the confrontation issue, the trial 

court explained defense counsel was “very aggressive” in arguing that the conditional 

examination should not be played for the jury. Defendant interrupted with: “He was.” 

Turning to the competency issue, the trial court explained: “There was not given the 

evidence that I heard both in these in camera hearings, Marsden hearings and outside of 

it, the evidence to express a doubt, and I didn‟t[,] that would raise competency issues for 

the trial.” 

The trial court then commented on the defense strategy: “It is a proper role for the 

attorney to make strategic decisions. I know you can‟t see this, but [defense counsel] 

crafted what I thought was a very shrewd defense given the facts as they existed on your 

behalf. [¶] A defense that was based on reason, and a defense that was strong given the 

facts that were in this case, and he was successful as to the attempted murder charge. His 

argument and how he expressed that argument is within his discretion, but it was 

certainly effective in part, and it was not unreasonable, and it was clearly an appropriate 

strategy decision.” Turning to the request to review the trial transcript, the trial court 

explained that “whether or not a copy of the trial transcript is helpful in filing the new 

[trial] motion” is also a decision for counsel to make. Finally, the trial court found no 

“fundamental breakdown” in the attorney-client relationship requiring substitution. 

Following the Marsden hearing, the trial court denied the new trial motion and 

sentenced defendant to state prison to serve a term of 25 years to life. 
52

C.

Analysis

Defendant complains the trial court “mishandled” the final Marsden motion by 

failing to inquire into his “complaint that trial counsel had provided ineffective assistance 

in failing to develop mental state evidence during trial and in connection with [the] 

pending new trial motion.” According to defendant, “[t]he trial court knew from prior in 

camera hearings that [defendant] was confused about what exactly „competency‟ meant, 

but he had linked it to mental state and consistently expressed interest both in having his 

„competency‟ tested and in contesting his mental state. At the previous Marsden hearing, 

the court had also heard [defendant] complain that counsel had not adequately brought up 

at trial „my mental state of mind at the time [of the crimes], that doesn‟t sound like a 

normal guy doing this stuff.‟ Additionally, the court was aware that [Cindy H.] had 

testified in her conditional examination that [defendant] expressed surprise and confusion 

over [Cindy H.]‟s injuries after some of the beatings, drank regularly and had been 

drinking during the charged incident.” 

Thus, argues defendant, the trial court was “on notice that one of [his] complaints 

against counsel at the February 4, 2011, hearing was that counsel should have developed 

for trial information about [defendant‟s] „blacking out‟ in regards to his mental state at 

the time of the crimes, and counsel should have sought a new trial based on having failed 

to do so. . . . [¶] Inexplicably, the trial court never made trial counsel address [this] 

complaint. It could not, therefore, intelligently rule on whether counsel should be 

removed because he was providing ineffective assistance.”8 

 

8 Defendant further argues he stated during the February 4, 2011, hearing that “the 

information [concerning his mental state] should have been developed in formal 

proceedings by a „qualified witness,‟ presumably a mental health expert. The trial court 

basically understood [defendant‟s] claim in this manner as reflected by its summary of 

[defendant‟s] remarks.” This view of defendant‟s statements at the Marsden hearing is 
53

We conclude the trial court made more than an adequate inquiry into defendant‟s 

complaints. As mentioned, “a criminal defendant who seeks to substitute counsel must 

be allowed to state the specific reasons for his [or her] dissatisfaction with counsel.” 

(People v. Clemons (2008) 160 Cal.App.4th 1243, 1250.) That happened here. As 

mentioned, the trial court understood defendant‟s complaint to be “that [defense counsel] 

should have filed a new trial motion based on the failure to get a competency hearing, or 

to develop this information[, i.e., evidence that defendant had blacked out in the past,] in 

front of the jury.” This understanding is consistent with defendant‟s argument on appeal. 

Thus, the trial court heard defendant‟s complaint. 

Once the trial court provides an opportunity to state specific reasons for 

dissatisfaction with counsel, “it is within the trial court‟s discretion whether the 

circumstances justify a substitution of counsel. Substitution is required if the record 

clearly shows defense counsel is not providing adequate representation or there is such a 

conflict between the defendant and counsel that ineffective assistance of counsel is likely 

to result. The trial court‟s determination will not be disturbed on appeal absent a showing 

that denial of the motion substantially impaired the defendant‟s right to the effective 

assistance of counsel.” (People v. Clemons, supra, 160 Cal.App.4th at p. 1250.) While 

the trial court did not ask defense counsel during the Marsden hearing to specifically 

address defendant‟s complaint concerning his failure to put forth additional evidence of 

defendant‟s purported blackouts, we conclude the trial court had sufficient information to 

rule on the motion. Indeed, defendant acknowledges Cindy H. testified during the 

conditional examination that the morning after some of the beatings, defendant expressed 

 

belied by the record. As set forth above, defendant complained he tried to convince his 

attorney to file a new trial motion based on evidence of his mental state. He then 

complained he was denied a competency hearing, in which he believed a “qualified 

witness” would testify to his mental state. When asked who this witness was, defendant 

answered “both of them,” referring to Nielsen and Cindy H. Defendant was not referring 

to a mental health expert. 
54

confusion about some of her injuries. Cindy H. was unavailable to testify at trial. Thus, 

there was nothing defense counsel could have done to elicit further information 

concerning defendant‟s purported blackouts through her testimony. And assuming 

Nielsen had information about defendant not remembering his assaults on her, the trial 

court could reasonably have concluded the failure to elicit such testimony would not have 

supported the grant of a new trial. Without prejudice flowing from defense counsel‟s 

allegedly deficient performance, the trial court could not have found merit in defendant‟s 

claim of ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 

668, 687, 693-694.) For the same reason, we cannot find denial of the Marsden motion 

substantially impaired defendant‟s right to the effective assistance of counsel. 

Accordingly, reversal is not warranted. 

VII

Sentencing Issues

Finally, the parties agree the abstract of judgment does not accurately reflect the 

oral pronouncement of judgment because it incorrectly states the sentence imposed 

pursuant to section 667.61, subdivision (d)(3), was stayed. The parties further agree the 

trial court neglected to impose sentence on counts 2 and 3 before staying the execution of 

sentence pursuant to section 654. This resulted in an “unauthorized absence of sentence” 

which must be corrected. (People v. Alford (2010) 180 Cal.App.4th 1463, 1472 

(Alford).) 

While the parties agree there was error, they disagree on the appropriate remedy. 

The Attorney General argues that, in order to avoid the “futility and expense” of a new 

sentencing hearing, we should modify the judgment to impose a life term sentence on 

count 2, an upper term sentence of four years on count 3, plus a consecutive five-year 

term for the great bodily injury enhancement. Defendant argues we must either remand 

the matter to the trial court for a new sentencing hearing or impose the middle term 
55

sentence on count 3. We conclude the matter should be remanded to the trial court for 

the limited purpose of imposing sentence on counts 2 and 3. 

In Alford, supra, 180 Cal.App.4th 1463, the defendant committed burglary and 

grand theft by entering a Wal-Mart, loading a shopping cart with over $500 worth of 

meat and camping supplies, and attempting to leave the store without paying. The trial 

court sentenced him to the middle term of two years for the burglary and stayed

imposition of sentence on the grand theft conviction under section 654. (Id. at pp. 1466-

1467.) We held this resulted in an “unauthorized absence of sentence” because “[a] trial 

court must impose sentence on every count but stay execution as necessary to implement 

section 654.” (Id. at p. 1472.) Citing the “futility and expense” of remanding the case to 

the trial court for resentencing, we modified the judgment to impose the middle term 

sentence of two years for the grand theft conviction, explaining, “that is undoubtedly the 

sentence the trial court would have imposed, because the grand theft involved the same 

conduct as the burglary.” (Id. at p. 1473.) 

Here, the trial court possesses no discretion but to impose a life term on count 2 

(§ 206.1) and a five-year term for the great bodily injury enhancement attached to count 3 

(§ 12022.7, subd. (b)). However, count 3 is punishable by “imprisonment in the state 

prison for two, three, or four years.” (§ 273.5, subd. (a).) “Absent some agreement by 

the defendant or the unavailability of the trial judge for other than internal administrative 

problems or convenience of the court, or some other good cause shown, a defendant 

should be able to have the trial judge who was familiar with the evidence at the trial 

impose sentence.” (People v. Strunk (1995) 31 Cal.App.4th 265, 275-276, fn. 13.) In 

Alford, we could conclude the trial court would have imposed the middle term sentence 

on the defendant‟s grand theft conviction because the trial court imposed a middle term 

sentence on the burglary conviction based on the same facts that supported the grand theft 

conviction. Given the facts of this case, the trial court could impose the upper term 

sentence. But it is not “undoubtedly” the case that the trial court will impose the upper 
56

term. (Alford, supra, 180 Cal.App.4th at p. 1473.) Accordingly, we must remand the 

matter to the trial court for the limited purpose of imposing sentence on counts 2 and 3. 

We also direct the trial court to amend the abstract of judgment following 

resentencing to reflect the sentences imposed on counts 2 and 3, and to further reflect that 

the sentence imposed pursuant to section 667.61, subdivision (d)(3), was not stayed. 

DISPOSITION

Defendant‟s convictions are affirmed. The matter is remanded to the trial court for 

resentencing on counts 2 and 3. Following resentencing, the trial court shall amend the 

abstract of judgment to reflect the sentences imposed on these counts and to reflect the 

sentence imposed pursuant to Penal Code section 667.61, subdivision (d)(3), was not 

stayed. A certified copy of the amended abstract of judgment shall be forwarded to the 

Department of Corrections and Rehabilitation. 

 HOCH , J.

We concur:

 ROBIE , Acting P. J.

 MURRAY , J.